The Liability of International Arbitrators: A Comparative Analysis and Proposal for Qualified Immunity

Susan Franck, Washington and Lee University School of Law


International arbitration has become the preferred way of resolving international commercial disputes. Although the parties have an opportunity to play a role in the selection of arbitrators, there may nevertheless be concerns about the integrity of the dispute resolution process. This article examines the nature of the relationship between the parties and the arbitrators. It then explores how a variety of countries address the issues of arbitrator liability or immunity from the common law, civil law and Islamic law perspectives. The article ultimately recommends the adoption of a qualified immunity standard, which balances the needs for arbitrators to function independently and render just decisions that apply the law to the facts without concern for personal repraisal against the need to avoid bad-faith conduct by arbitrators who do not wish to follow the rule of law. Such a balance will appropriately instill confidence in the decision-making process, render arbitrators accountable in appropriate circustances and promote arbitration's justice promoting objectives.